Mass. Tries 'Open, Transparent' Approach to Malpractice Claims

A new Massachusetts law could be setting the stage for future reforms regarding how you disclose and perhaps even apologize for medical errors. 

The law, part of Massachusetts’ recently passed Healthcare Cost Control Bill, is the first ever to enable a disclosure, apology, and offer (DA&O) program across different practice environments and insurance arrangements.

Under the DA&O program, physicians will disclose medical errors to patients and they will be able to apologize to patients without the apologies being used as an admission of liability against them in court. A pilot program is underway at seven hospitals in the state.

“We have a pilot that will be looking at the effects at these seven hospitals over a 3-year period, but really, this is the fundamental type of transformation to a new and better model to deal with adverse outcomes without having to resort to litigation,” emergency physician Alan Woodward, chair of the Massachusetts Medical Society’s Committee on Professional Liability and a past president of the organization, told Physicians Practice.

The program also entails:

• A 182-day “cooling off period” while both sides try to negotiate a settlement.
• Full disclosure and apologies made by physicians to patients when a mistake occurs.
• An investigation into why the mistake occurred and establishment of systems to prevent future similar mistakes.
•When warranted, financial compensation offered to injured patients.
• Patients will have the right to consult an attorney to advise them of their rights and to evaluate the fairness of any offer or to bring legal action if they so choose.

“The whole concept here is to replace what is a very onerous, inefficient, adversarial system with an open, transparent model where physicians can advocate for patients rather than viewing them as the enemy when something goes wrong; where instead of blaming individuals, we look at how you fix systems to prevent recurrences,” said Woodward. In addition, he said that the legislation will take “the fear out of the system,” and therefore, reduce defensive medicine.

A similar DA&O program may be down the road for you. Woodward said the hope is that the program will become a national model. 

“What we’re doing here in Massachusetts is taking a model that’s been very successful in closed hospital systems and trying to create an environment where it can be implemented - and it’s volitional - but can be implemented statewide,” said Woodward, noting that the University of Michigan, Stanford, and a host of other hospital systems have implemented similar models successfully.

Since instituting its program, the University of Michigan Health System has cut litigation costs by $2 million a year, and medical liability claims have fallen 40 percent, according to American Medical News.

What do you think of the Massachusetts model? Would you participate in a program like this as a physician? Why or why not?